Judge Investigates Ethicon’s Link in Pelvic Mesh Mass Tort

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The judge supervising the pelvic mesh mass tort litigation, pointed out that the defendant which is based in New Jersey may have a “strong” affiliation with the mesh-manufacturer in Pennsylvania, however, he probed whether that connection would be enough to keep the over 90 pelvic mesh cases that involve plaintiffs who live out of state.

Arnold New, Philadelphia’s Court of Common Pleas judge, heard the arguments made on Wednesday regarding whether the U.S. Supreme Court decision in Bristol-Myers Squibb v. Superior Court of California in which 90 out-of-states plaintiff’s suing Ethicon, the medical device company based out of New Jersey would have their cases thrown out leaving only 30 pelvic mesh cases in Philadelphia.

The ruling in regard to Bristol-Myers, stated that out-of-state plaintiffs are not able to sue companies in which the defendants aren’t considered to be “at home,” or they have not conducted business which would be directly related to the claimed injury.

That decision secured the relationship between drug maker Bristol-Myers Squibb and McKesson Corp., a California drug distributor. Since McKesson distributed Plavix, the drug in question in the case, the plaintiffs had argued that the jurisdiction fell under California in hundreds of Plavix-related claims. The justices, however, found the affiliation between McKesson and Bristol-Myers Squibb was not suitable to establish jurisdiction in the state Of California.

Subsequently after the ruling in June, many defendants have brought up Bristol-Myers and have requested the courts toss out the plaintiff’s mass tort programs in other state courts around the country.

Plaintiffs in the pelvic mesh program have pointed out that a Pennsylvania- based company, Secant, is arguing that the manufactured plastic mesh material used in the mesh implants is the reason why the jurisdiction is in Pennsylvania, when the main defendant, is based in New Jersey, which is Johnson & Johnson a subsidiary Ethicon.

In an almost 90- minute hearing on Wednesday, Drinker Biddle & Reath attorney Alicia Hickok was asked by New to describe Ethicon’s connection with Secant comparing them to Bristol-Myers Squibb’s connection with McKesson.

“Your honor, it’s a different relationship,” said Hickok.

“I agree,” New interjected. “It’s a stronger relationship.”

Hickok, however, stated the relationship had to go directly to each plaintiff’s alleged cause of action in their lawsuit.

The causes of action in the case of pelvic mesh plaintiffs were defective design and failure to warn, however Hickok noticed that those decisions and regulation submissions were done by Ethicon executives in New Jersey.

“These were not responsibilities as to people who were in Pennsylvania,” Hickok stated. The use of a roll of mesh manufactured in Pennsylvania “is not enough to say the cause of action arises out of it.”

Secant was dismissed before as a defendant in the pelvic mesh litigation noted Hickok, but New disregarded that comment, noting that the earlier ruling regarding Secant hung on issues occurring out of the Biomaterials Access Assurance Act.

“That’s an entirely different definition than would be applicable to what’s before us today, which is jurisdiction,” New said.

The judge assigned to the pelvic mesh mass tort litigation stated that the New Jersey based defendant may have a “strong” relationship with a Pennsylvania mesh-manufacturer, however, he probed whether the relationship would be enough to hold jurisdiction over the 90 out of state plaintiffs involving pelvic mesh suits.

 

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